Local 38, Int'l Brotherhood Electrical Workers

National Labor Relations Board - Board Decisions

Jul 30, 1962

137 N.L.R.B. 1719 (N.L.R.B. 1962)

LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 1719
the Act does establish the eligibility of replaced economic strikers to vote along
with permanent replacements to resolve a question concerning representation, this
provision also states that eligibility to vote is to be limited to employees "engaged"
in an economic strike .9 Here, on August 25, the day the industry strike had come to
an end , a union member called the Company in an effort to return to work, and
by the close of the day on August 28, all of the Union's members had shown
a desire to return to work and were told that there were no jobs available. For a
period of about a week thereafter there is no showing of any conduct by the four
union members or the Union showing any further interest in employment at the
Company or any dispute with the Company . It was not until September 5, several
days after the Independent was recognized , that the four union members and the
union representatives next reasserted their interest by seeking reemployment. At
that time the Company again pointed out that the jobs had been filled by permanent
replacements and refused to reemploy the union men . It was not until this point
in the sequence of events that the Union started to picket again and this time
asserting that the union members were locked out. On this state of the record,
balancing the concurrence of the ending of the industry dispute with the application
for employment by the unionmen and the absence of a showing of any conduct
by the Union or the men for a period of about a week thereafter that would indicate
a continuing dispute with the Company , as against the picketing activity thereafter
protesting the refusal to hire, it is found that the strike had been 'abandoned at the
time of the recognition of the Independent and that the four men were then no longer
engaged in the strike.
It thus appears that as all of the Union 's members were permanently replaced in
the course of an economic strike, and as its members were no longer engaged in a
strike under Section 9(c) (3), the Union had but an unsupported claim which could
not give rise to a question concerning representation . The Independent demonstrated
its representative status by the strike among The employees to obtain recognition,
and the Company was then under a duty to bargain with it. Since the Independent
was the majority representative , the Company was privileged to contract with it for
the union -security provision described above. Accordingly , it will be recommended
that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the -meaning of the Act.
2. The Union and the Independent are labor organizations within the meaning
of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint within the meaning of Section 8(a)(1), (2), and (3) of the Act.
RECOMMENDATION
Upon the basis of the foregoing findings and conclusions , and upon the entire
record , it is recommended that the complaint be dismissed.
O Section 9 ( c) (3) reads in part, as follows:
Employees engaged In an economic strike who are not entitled to reinstatement shall
he eligible to vote under such regulations as the Board shall find are consistent with
the purposes and provisions of this Act in any election conducted within 12 months
after the commencement of the strike.
See W. Wilton Wood, Inc., 127 NLRB 1675.
Local Union No. 38, International Brotherhood of Electrical
Workers , AFL-CIO and Cleveland Electric Illuminating Com-
pany. Case No. 8-CD-24. July 30, 1962
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act following a
charge filed by Cleveland Electric Illuminating Company, herein
137 NLRB No. 193.
1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called CEI, against Local Union No. 38, International Brotherhood
of Electrical Workers, AFL-CIO, herein called IBEW, alleging that
IBEW illegally coerced CEI to change work assignments from one
class of employees to another. A duly scheduled hearing was held
before James M. Fitzpatrick, hearing officer, on January 3 and 4, 1962.
CEI, Local 38, and Local 270, Utility Workers Union of America,
AFL-CIO, herein called Utility Workers, appeared at the hearing
and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to adduce evidence bearing upon the issues.
The rulings of the hearing officer made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record, the Board makes the following findings :
FINDINGS OF FACT
1. THE BUSINESS OF CEI
As stipulated by the parties, CEI is a public utility corporation
which has a gross annual volume of business in excess of $250,000, and
which receives annually from outside the State in which it operates
goods valued in excess of $50,000. We find that CEI is engaged in
commerce within the meaning of the Act and that it will effectuate the
policies of the Act to assert jurisdiction herein.'
II. THE LABOR ORGANIZATIONS
As stipulated by the parties, IBEW and Utility Workers are labor
organizations within the meaning of the Act.
III. THE DISPUTE
A. The basic facts
CEI is engaged in the manufacture, sale, and distribution of electri-
cal energy and steam in northeastern Ohio. In 1961 it undertook to
build an addition to its existing facilities at Cleveland, known as Lake
Shore Station, unit 18. Included in the new construction was a build-
ing or room called the Electric House, containing machinery designed
to control the operation of certain auxiliary equipment needed for
the functioning of a generator plant. All construction work on this
project was contracted out to independent contractors. The electrical
work was contracted out to Merrell Electric Company, herein called
Merrell, with the exception of the electrical work to be done inside the
Electric House, which was assigned to electrical mechanics employed
by CEI.
Utility Workers has represented the "operating, maintenance, and
construction" employees of CEI since certification of its predecessor
1 Sioux Valley Empire Electric Association , 122 NLRB 92.
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKER, 1721
organizing committee by the Board in 1943. At the time of the hear-
ing herein, it had a collective-bargaining agreement with CEI, effec-
tive until April 30,1962. IBEW represents the employees of Merrell,
but does not represent any CEI employees.
During September 1961, while the Lake Shore Station construction
was in progress, IBEW learned that Merrell had not been given the
electrical work inside the Electric House, and that CEI employees
represented by Utility Workers were to do it. IBEW protested to
CEI and demanded that its members be allowed to do this work.
Upon learning of this protest, officials of Utility Workers notified
CEI that it claimed the disputed work for the electrical mechanics
whom it represented and would take the necessary steps to protect
their rights. After considerable discussion among representives of
CEI and the two unions CEI reaffirmed its original decision to do
this work with its own electrical mechanics.
On November 3, 1961, Hirsch, business representative of IBEW,
went to the Lake Shore Station site and informed the IBEW mem-
bers employed by Merrell of CEI's intention to use its own employees
to do the electrical work inside the Electric House. They immediately
walked off the job. On November 8, IBEW began to picket the job-
site. Members of other unions who were employed by other contrac-
tors at this site refused to cross the picket line. On November 24
picketing ceased and work was resumed by all employees, pursuant
to a stipulation entered into during the course of a district court suit
for an injunction under Section 10 (1) of the Act.
B. Contentions of the parties
CEI contends that IBEW has violated Section 8(b) (4) (D) of the
Act and that, because of the factual differences between the present
case and the CBS case,2 CEI's assignment of the work should be deter-
minative of the controversy without regard to the other criteria nor-
mally considered in resolving disputes under Section 10(k).
Utility Workers urges that CEI's assignment of the work is proper
on the basis of the prior Board certification, its collective-bargaining
agreement with CEI, and the past practice of CEI of having similar
work done by its own employees.
IBEW contends that the disputed work is properly within its juris-
diction, and relies upon its international constitution, the collective-
bargaining agreement between IBEW and the Cleveland chapter of
the National Electrical Contractors Association, of which Merrell is a
member but CEI is not, and the practices of other utility companies
in the area when constructing comparable facilities.
2 N L.R.B. v. Radio & Television Broadcast Engineers Union Local 1212, IBEW, AFL-
CIO (Columbia Broadcasting System ), 364 U.S. 573.
1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Applicability of the statute
Section 10 (k) of the Act empowers the Board to hear and determine
the dispute out of which a Section 8(b) (4) (D) charge has arisen.
Before making a determination of the dispute, however, the Board
is required to find there is reasonable cause to believe that Section
8(b) (4) (D) has been violated.
The record herein shows that IBEW claimed its members were
entitled to the work in dispute, that CEI assigned the work to elec-
trical mechanics represented by Utility Workers, and that IBEW
thereafter picketed the project from November 8 to 24, 1961. The
record in its entirety contains persuasive indication that the picket-
ing was to induce a strike and to force the employer to change work
assignments. A work stoppage in fact followed immediately upon
the picketing. We find, therefore, on the entire record, that there
is reasonable cause to believe that a violation of Section 8(b) (4) (D)
has occurred, and that the dispute is properly before the Board for
determination under Section 10 (k) of the Act.
D. Merits of the dispute
CEI maintains that once it made the decision to assign the disputed
work to its electrical mechanics it was no longer neutral about which
group of employees would perform the work. It distinguishes, on
this ground, the present situation from that in the CBS case, supra,
where the Supreme Court found that the employer was indifferent
about who would do the work. It contends, therefore, that the sole
ground for decision in this case is its own assignment of the work, and
that all other considerations are irrelevant. We find no merit in
these contentions. As the Board recently stated :
But the underlying rationale of the decision [CBS] clearly in-
dicates that the Court was laying down a guide for the disposi-
tion of all jurisdictional disputes and not simply those in which
the employer is truly indifferent as to which group of claimants
shall perform the disputed work.3
The assignment made by the employer is one of the "relevant factors"
which we consider,4 but it cannot stand as the exclusive basis for
determination of a jurisdictional dispute. Other factors we have
considered in this case are as follows :
Skills and work involved : The record shows that the employees
assigned by CEI to do the disputed work are electrical mechanics,
8 Local 991 , International Longshoremen's Association , et al. (Union Carbide Chemicar
Company, division of Union Carbide Corporation), 137 NLRB 750.
& International Association of Machinists , Lodge No . 1743, AFL-CIO (J. A. Jones Con-
struction Company ), 135 NLRB 1402
LOCAL 38, INT'L BROTHERHOOD ELECTRICAL WORKERS 1723
each with a minimum of 5 to 8 years' experience in this field. All
have had special training and have passed qualifying examinations.
The work inside the Electric House consisted mainly of wiring, duct
work, and welding, all of which are part of the electrical mechanics'
normal duties and are performed both in construction and mainte-
nance by the same individuals. There was testimony by CEI's super-
visor of union relations that construction and maintenance work were
combined in a single department so that "The people that build it
then have the necessary experience to go back and maintain it."
It is clear, then, that by training and experience the CEI employees
possess the skills necessary to perform the disputed work. They
actually perform such work as part of their daily maintenance tasks,
as well as when a new facility is under construction. There is no dis-
pute, of course, that electrician members of IBEW also possess the
necessary skills and that they have performed similar work on other
portions of the Lake Shore project.
The NLRB certification: IBEW challenges the effectiveness of the
certification because of its age and because it did not name Utility
Workers, but its predecessor organizing committee. There is, how-
ever, nothing in the record to cast doubt on the validity of the suc-
cessorship of Utility Workers to the certification, nor on the continu-
ing status of Utility Workers as the bargaining representative of the
employees in the unit, described in the certification as "all operating,
maintenance and construction" employees.
The collective-bargaining agreement: Utility Workers is recog-
nized in its agreement with CEI as the exclusive representative of
employees in the unit described in the certification, which clearly
covers the employees assigned by CEI to do the disputed work.
IBEW claims that the agreement reserves to CEI the right to con-
tract out work customarily done by bargaining unit employees unless
this would result in demotion or layoff, and, therefore, that CEI was
not obligated to assign this work to its own employees.
Employer's past practice : The evidence in the record concerning
CEI's past practice in dealing with work of the type involved herein
shows that on three prior occasions it was performed by CEI electrical
mechanics. IBEW contends that this evidence is not material because
on two of those occasions, other locals of the International Brother-
hood of Electrical Workers protested the assignment. While we do
not find the evidence of CEI's past practice to be conclusive, we have
considered it as one of the relevant factors in determining this dispute.
Custom and practice in the industry: IBEW presented testimony
that on five occasions in West Virginia and on three occasions in Ohio,
IBEW electricians performed work similar to that under dispute
herein. It introduced into evidence the constitution of its Interna-
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional, showing that unions such as IBEW have jurisdiction over all
electrical work within the property lines of a building. IBEW also
introduced a collective-bargaining contract providing that the Cleve-
land chapter of the National Electrical Contractors Association recog-
nizes IBEW as the exclusive representative of all the employees within
the jurisdiction of IBEW and covering all "electrical construction,
installation or erection work and all electrical maintenance
thereon...."
Weighing the factors relied upon by CEI and Utility Workers, on
the one hand, against those cited by IBEW on the other, we conclude
that the former outweigh the latter. As the electrical mechanics
employed by CEI are sufficiently skilled to perform the disputed work,
as CEI assigned it to them, as the assignment is consistent both with
the Board certification and the terms of the collective-bargaining
agreement between CEI and Utility Workers, and as there is evidence
of the employer's past use of such employees on similar projects, we
shall determine the dispute in favor of the electrical mechanics who
are performing the work. In making this determination, we are
assigning the controverted work to electrical mechanics represented
by Utility Workers, and not to Utility Workers or its members.
In view of the above, we find that IBEW was not and is not entitled,
by means proscribed in Section 8(b) (4) (D), to force or require CEI
to assign the electrical work inside the Electric House, at its Lake
Shore Station, unit 18, to its members rather than to the electrical
mechanics.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings and the entire record in
the case, the Board makes the following Determination of Dispute
pursuant to Section 10 (k) of the Act :
1. Electrical mechanics engaged in electrical work inside the Elec-
tric House at Cleveland Electric Illuminating Company's Lake Shore
Station, unit 18, Cleveland, Ohio, and currently represented by Local
270, Utility Workers Union of America, AFL-CIO, are entitled to
perform such work.
2. Local Union No. 38, International Brotherhood of Electrical
Workers, AFL-CIO, is not and has not been lawfully entitled to force
or require Cleveland Electric Illuminating Company to assign such
work to its members.
3. Within 10 days from the date of this Decision and Determination
of Dispute, Local Union No. 38, International Brotherhood of Elec-
trical Workers, AFL-CIO, shall notify the Regional Director for the
Eighth Region, in writing, whether or not it will refrain from forcing
or requiring Cleveland Electric Illuminating Company by means pro-
scribed by Section 8 (b) (4) (D) to assign the work in dispute to its
GENERAL DYNAMICS/TELECOMMUNICATIONS, ETC. 1725
members rather than to the electrical mechanics employed by Cleve-
land Electric Illuminating Company and represented by Local 270,
Utility Workers Union of America, AFL-CIO.
[MEMBER FANNING took no part in the consideration of the above
Decision and Determination of Dispute.]
MEMBER RODGERS, concurring :
I agree that the Employer's employees are entitled to perform the
work involved herein.
General Dynamics/Telecommunications , a Division of General
Dynamics Corporation and District No. 6, International Asso-
ciation of Machinists , AFL-CIO. Case No. 3-CA-1573. July
30, 1962
DECISION AND ORDER
On December 21, 1961, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and brief, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner only to the extent consistent
herewith.
The complaint herein alleges that the Respondent interfered with its
employees in the exercise of their organizational rights in violation
of Section 8(a) (1) of the Act by prohibiting the International Asso-
ciation of Machinists, hereinafter referred to as the Union, from dis-
tributing union literature on Carlson Road. Specifically, the Gen-
eral Counsel contends that the Respondent violated Section 8(a) (1)
by prohibiting the distribution of literature by nonemployee organi-
zers of the Union on Carlson Road, which he urges is a "public
thoroughfare" despite the fact that it is privately owned and main-
tained, while simultaneously permitting such distribution by the
Rochester Independent Workers, the exclusive representative of the
Respondent's production and maintenance employees. The Trial Ex-
137 NLRB No. 183.